November 01, 2010

Election Lawyers Get Ready for the Day After

Washington lawyers who specialize in election law are bracing for recounts, complaints and other aftermath expected from the midterm elections on Tuesday.

Many law firms are working with familiar clients — Perkins Coie, for example, continues to represent the establishment of the Democratic Party, and the firm’s lawyers have already filed some complaints. Others are mounting defenses for newly formed nonprofit groups, such as American Crossroads. Holtzman Vogel partner Thomas Josefiak has been publicly representing that organization, which is spending millions of dollars on behalf of Republican candidates.

One question on the minds of election lawyers is whether there will be an unusually high number of contested results this year, given how close many races are and the fact that control of Congress is up in the air.

“I would be surprised if there weren’t a number of statewide contests that went at least to the recount stage,” said Sandler, Reiff & Young partner Joseph Sandler, a former general counsel to the Democratic National Committee. Still, Sandler added, for a race to be considered “true recount territory, it has to be an awfully narrow margin, well within a quarter of a point.”

Patton Boggs partner Benjamin Ginsberg said he others who represent candidates need to prepare for an array of potential situations. He noted that states vary widely in their voting and recount procedures, including the timeline for recounts.

“To refight the last recount is a fatal error,” said Ginsberg, who represented the Bush-Cheney campaigns in 2000 and 2004 and former Sen. Norm Coleman (R-Minn.) two years ago. “You learn something from all experiences, and you should, but the Minnesota process is unique to Minnesota, obviously.”

Ginsberg’s clients include the Republican Governors Association, which hopes to swing several state capitals into the GOP column.

Bobby Burchfield, co-managing partner of McDermott, Will & Emery’s Washington office, said, “It’s become somewhat too commonplace for elections to end up in recounts, so we can’t rule out the possibility of recount litigation.”

Burchfield, who has represented the Republican National Committee and other GOP groups in the past, declined to say whether McDermott has been retained by any political organizations heading into the elections. But he said, “We’re focused on gubernatorial and statewide Senate races.”

With no presidential candidates this election cycle, many election law practices are representing a smattering of individual senators and congressmen. Foley & Lardner partner Cleta Mitchell is representing Republican Senate candidates Sharron Angle (Nevada) and Christine O’Donnell (Delaware). Sandler’s clients include Roy Herron, a Democratic congressional candidate in Tennessee who has filed a Federal Election Commission complaint against his opponent.

Over the weekend, the Democratic Congressional Campaign Committee announced that it was filing an FEC complaint a nonprofit group named Americans for Common Sense Solutions. Perkins Coie partner Brian Svoboda, as the DCCC’s general counsel, signed the complaint.

UPDATE (4:32 p.m.): The Republican National Committee is invoking the memory of the Coleman-Al Franken recount in a fundraising appeal.

Jeff Jeffrey contributed. An earlier version of this post misspelled Ginsberg's name.